Clancy v. Consolidated Freightways

Opinion

HANSON (Thaxton), J. Plaintiffs Patrick E. Clancy and William Barber, dba BCW Enterprises, Inc., and David Fleischer, dba California Imports, Inc. (hereinafter referred to collectively as plaintiffs) appeal from a summary judgment in favor of defendant Consolidated Freightways, (hereinafter referred to as Consolidated).

Facts

The record discloses the following undisputed facts:

During the summer of 1976, Clancy and Barber, who manufacture burl tables in California, contracted to ship a number of tables to Fleischer in the State of New York. On August 18, 1976, they tendered the shipment of tables to Consolidated for shipment from Pacoima, California to New York City, New York. The freight bill of lading prepared by Consolidated was signed at that time by Barber.

The plaintiffs allege that the tables were damaged in transit. On September 26, 1976, the consignee, David Fleischer, reported the damage and filed a claim in writing with Consolidated. On December 1, 1976, the claim was rejected by Consolidated.

Clancy and Barber, when discussions with Consolidated relating to settlement of the matter failed, filed this action on January 5, 1979, somewhat over two years after rejection of their claim.

Consolidated filed a motion for summary judgment on the basis that both its bill of lading and its tariff on file with the Interstate Commerce Commission (hereinafter the ICC) declare in material part that a shipper of goods must file a lawsuit within two years and one day from the time that its claim is declined by a carrier. Consolidated conceded that its [546]short form of the uniform bill of lading, which was used in this case, contains only a reference to its tariff and does not contain all of the terms and conditions of carriage, but alleged that the limitations period in its tariff bars the litigation.

In support of the motion for summary judgment, defendant filed the affidavit of Robert C. Stetson, vice president and general counsel of Consolidated Freightways of Delaware who alleged, in substance, as follows: that Consolidated is an ICC common carrier motor vehicle authorized as such in ICC Docket Number 42487; that pursuant to the authority it is authorized to transport general commodities between, inter alia, Pacoima, California and New York City, New York; that as general counsel the affiant is familiar with all contracts of affreightment issued by his company; that a correct copy of the terms and conditions of the straight bill of lading is attached to the affidavit which is identical to the one used for plaintiffs’ shipment; that this bill of lading is attached to the affidavit which is identical to the one used for plaintiffs’ shipment; that this bill of lading is part of Consolidated’s tariff on file with the ICC.